Morrow v. Goodell

• Decision Date: 08 March 1955
• Docket Number: No. 48674,48674
• Citation: 68 N.W.2d 916,246 Iowa 982
• Parties: Paul E. MORROW, Plaintiff-Appellant, v. Floyd M. GOODELL, Aileen R. Goodell, Roy Johnson, Ethel Johnson, and Stanley Hanson, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 916

68 N.W.2d 916

246 Iowa 982

Paul E. MORROW, Plaintiff-Appellant, v. Floyd M. GOODELL, Aileen R. Goodell, Roy Johnson, Ethel Johnson, and Stanley Hanson, Defendants-Appellees.

No. 48674.

Supreme Court of Iowa.

March 8, 1955.

Rehearing Denied May 6, 1955.

Ferguson, Ferguson & Falk, Shenandoah, for appellant.

Hiram S. Hunn, Des Moines, for appellees Floyd and Aileen Goodell.

Keenan & Clovis, Shenandoah, for appellees Roy Johnson, Ethel Johnson, and Stanley Hanson.

HAYS, Justice.

Floyd M. Goodell and Aileen Goodell, husband and wife, were joint tenants of real estate described as follows: N.E. 1/4 S.E. 1/4 Sect. 30, Twp. 76 N. Range 37 West 5th P. M., Page County, Iowa. September 8, 1953, a written contract of sale was prepared, naming Floyd and Aileen Goodell as grantors, and Paul E. Morrow as grantee. Floyd Goodell and Morrow signed the same. Aileen refused. September 11, 1953, Floyd Goodell, by letter, repudiated the contract. October 9, 1953, Morrow brought this action for specific performance; naming Floyd Goodell, Aileen Goodell, Stanley Hanson, who was a tenant thereon, and Roy Johnson and Ethel Johnson, his wife, who claimed as purchasers under contract dated September 11, 1953, as parties defendants. On motion, the action was dismissed as to Aileen Goodell. March 3, 1954, a decree for specific performance was filed and also a finding that Johnson had no interest as against Morrow.

The decretal portion of the decree provided for specific performance as between Goodell and Morrow. It then provided: 'The Plaintiff and the Defendant are ordered to execute such instruments of title and conveyances as are sufficient to convey title, * * *, including the rentals accrued during the year ending March 1, 1954; and they are hereby directed to perform each and all agreements, conditions, and promises, * * *; except that said Plaintiff, * * *, shall have an abatement of the purchase price to the extent of one half thereof; and payment of said sum shall constitute full performance on his part. Jurisdiction is retained * * * for the purpose of such orders as may hereafter be necessary to enforce the provisions of this decree.'

Thereafter, exact date not shown, plaintiff filed a 'motion for order of court specifying and compelling performance of contract.' There was a resistance and hearing and on May 26, 1954, the court filed its 'order on motion'. It directed plaintiff to pay the sum of $8,000 with 5% interest from October 1, 1953, to March 3, 1954, less the sum of $703.88 (proceeds of half of the 1953 corn crop) with 5% interest from date of sale thereof, January 7, 1954, to March 3, 1954. It allowed plaintiff to deduct from the $8,000 half of the mortgage indebtedness against the land; if he assumes and agrees to pay it with interest from March 1, 1954 (principal sum to be assumed--$3,151.66). It ordered payment to Roy Johnson of $62.50 for plowing done by Johnson and $3.88 for insurance paid by Johnson. It taxed half of the costs to plaintiff and ordered that he pay half of the costs for continuation of the abstract of title from October 2, 1954. Plaintiff was to make payments within fifteen days and defendant was then ordered to deliver a warranty deed. If plaintiff failed to perform, his petition was to stand dismissed. If defendant failed, a commissioner would be appointed to execute the deed.

June 5, 1954, plaintiff filed a motion to 'correct and amend' the order of May 26, 1954. July 14, 1954, the court overruled the motion and ordered compliance within twenty-four hours or be cited for contempt. July 19, 1954, plaintiff gave notice of appeal from the orders of May 26 and July 14, 1954; which brings the case to this court.

I. First to be determined is a question of jurisdiction. Appellee, in his brief and argument, contends that the orders appealed from are not final decisions nor interlocutory rulings; and no appeal

was taken as prescribed by our Rules of Procedure, 58 I.C.A.

Rule 335 requires appeal to be taken within thirty days after final decision, unless there be pending a motion for a new trial under Rule 247; and then within thirty days after ruling thereon. It is not claimed that permission to appeal was had under Rule 332. The decree of March 3, 1954, appears to be final as to the specific performance and is so accepted by both parties. That question is not involved on this appeal. The decree does not attempt to pinpoint the specific rights and duties of the respective parties under the contract and specifically retains jurisdiction to so specify. The motion, and ruling thereon on May 26, 1954, were made under such retained jurisdiction and the order was intended as, and is, a final decision as to these matters.

Rule 244 deals with motions for a new trial. It is allowed from all or a portion of a final decision upon any of the grounds therein set forth. Among them are (d) error in fixing the amount of recovery in an action on a contract; and (h) errors of law occurring in the proceedings, or mistakes of fact by the court. The motion of June 5, 1954, is in effect a motion for a new trial by the court, based upon errors of fact and upon amounts to be paid, as prescribed in the May 26th order. Home Savings Bank of Slater v. Klise, 205 Iowa 1103, 216 N.W. 109; Thompson v. Butler, 223 Iowa 1085, 274 N.W. 110. Under Section 4.1, subd. 23, Code of 1954, I.C.A., the motion of June 5, 1954, was filed within the ten days time prescribed in Rule 247; and notice of appeal as per Rule 335. We hold that this court has jurisdiction to entertain this appeal.

II. Appellant's appeal asserts several propositions but all are based upon the question 'what did the parties to the contract agree to therein?'

The contract was signed September 8, 1953. As to appellant, it provided: Pay $16,000 for the land as follows--$2,000 cash to be placed in escrow until marketable title is furnished by appellee; assume mortgage in the sum of $6,425.99, as of September 1, 1953, then on the land; pay cash in sum of $7,574.01 on October 1, 1953, being the date for delivery of a deed. As to appellee, it provided: Assign insurance and pay all taxes for the year, 1953; deliver possession of the premises and all of the crops, then on the premises, on October 1, 1953; within ten days after execution of the contract, deliver the abstract of title, certified to a date subsequent to date of the contract, for examination by appellant; thereafter and prior to date of closing the transaction, deliver abstract of title showing marketable title; deliver warranty deed on receipt of purchase price.

The record shows that throughout the entire litigation, appellant has been able, ready, and willing to perform in accordance with the terms of the contract.

III. Error is asserted as to the amount credited on the purchase price on account of crops and possession. This amount is $703.88 instead of $1,250, as claimed by appellant.

The contract price was stated to be $16,000, with full possession and all of the crops thereon to be delivered on October 1, 1953. The record clearly shows that in arriving at this figure of $16,000, the land was considered to be worth $13,500; and all of the crops and possession on October 1, 1953, to be worth $2,500. Appellee's testimony is that he expected to settle with the tenant for his share and appellant was to have all. It appears that the tenant took his share and appellee, his; which he sold in January, 1954. It...